Creating a Drug-Free Workplace Policy

The Policy Builder has 13 different sections, each addressing one of the questions listed below.

What is the purpose/goal of your policy?

Who will be covered by your policy?

When will your policy apply?

What behavior will be prohibited?

Will employees be required to notify you of drug-related convictions?

Will your policy include searches?

Will your program include drug testing?

What will the consequences be if your policy is violated?

Will there be Return-to-Work Agreements?

What type of assistance will be available?

How will employee confidentiality be protected?

Who will be responsible for enforcing your policy?

How will your policy be communicated to employees?

For best results, your should build your policy in one session because no information you provide while using the system is saved or stored in any way.

Please not the DOL strongly recommends that you have your policy reviewed by a legal consultant, such as a labor/employment attorney, prior to distribution and implementation.

Supervisor Training
After developing a drug-free workplace policy statement, your organization should train those individuals closest to the workforce-supervisors. Training supervisors is an integral part of every drug-free workplace program. Supervisors should be provided with basic information about your drug-free workplace program and their role in its implementation.

At a minimum, supervisor training should include a review of:

Your drug-free policy.

The supervisor’s specific responsibilities in implementing the policy; and find ways to recognize and deal with employees who have job performance problems that could be related to alcohol and other drugs.

This section of the Advisor takes you through a sample of the materials that should be covered in a supervisor training session. it is recommended that you review all the material the first time you go through this section. To move from one section to the next, click the topic in the Menu Bar on the left side of the screen.

Also provided in the Supervisor Training section is a slide presentation with accompanying handouts that can be printed and used as part of your training program. The presentation is designed as introductory training for supervisors for making referrals to EAP’s or treatment providers based on performance problems. It does not, however, address making determinations for referral for drug testing for reasonable suspicion.

Please note that the presentation may not be appropriate for all organizations. Therefore, it is recommended that you review the presentation and, if necessary, modify the materials as needed to best accomplish your training goals.

Employee Education
Employee Education is a very important element of your drug-free workplace program. This section of the Advisor takes you through a sample of the material that should be covered in an employee education session, describes the impact that alcohol abuse and drug use has on the workplace and gives you factual information about addiction and the major drugs of abuse.

It is recommended that you review all of the material the first time you go through this section. To move from one section to the next, just click on the topic in the Menu Bar on the left side of the screen.

“Instructions for the Trainer” have been incorporated throughout the material to help you develop and present your own program.

Also provided in the Employee Education section is a slide presentation with accompanying handouts that can be printed and used as part of your training program. Please note that the presentation may not be appropriate for all organizations. Therefore, it is recommended that you review the presentation and, if necessary, modify the materials as needed to best accomplish your training goals.

Employee Assistance Program
An Employee Assistance Program (EAP) can be a valuable resource for both employees and managers and can play an important role in your drug-free workplace program. An EAP is a work site-focused program designed to assist in the identification and resolution of productivity problems associated with personal problems, such as alcohol and/or drug abuse.

Workplace Drug Testing
Drug testing is one action an employer can take to determine if employees or job applicants are using drugs. It can identify evidence of recent use of alcohol, prescription drugs, and illicit drugs. Currently, drug testing does not test for impairment or whether a person’s behavior is, or was, impacted by drugs. Drug testing works best when implemented based on a clear, written policy that is shared with all employees, along with employee education about the dangers of alcohol and drug abuse, supervisor training on the signs and symptoms of alcohol and drug abuse, and an Employee Assistance Program (EAP) to provide help for employees who may have an alcohol or drug problem.

Why do employers drug test?

How is drug testing conducted and how accurate is it?

Who is allowed access to the results of a drug test?

When are drug tests conducted? What are the different methods of drug testing?

What drugs do tests detect?

How long are drugs in one’s system?

What are cut-off levels, and what do they determine?

Why do employers drug test?
Alcohol and drug abuse creates significant safety and health hazards and can result in decreased productivity and poor employee morale. It also can lead to additional costs in the form of health care claims, especially short-term disability claims.

Common reasons employers implement drug testing are to:

Deter employees from abusing alcohol and drugs

Prevent hiring individuals who use illegal drugs

Be able to identify early and appropriately refer employees who have drug and/or alcohol problems

Provide a safe workplace for employees

Protect the general public and instill consumer confidence that employees are working safely

Comply with State laws or Federal regulations

Benefit from Workers’ Compensation Premium Discount Programs

How is drug testing conducted and how accurate is it?
Generally, most private employers have a fair amount of latitude in implementing drug testing as they see fit for their organization unless they are subject to certain Federal regulations, such as U. S Department of Transportation’s (DOT) drug testing rules for employees in safety-sensitive positions. However, Federal agencies conducting drug testing must follow standardized procedures established by the Substance Abuse and Mental Health Services Administration (SAMHSA), part of the U.S. Department of Health and Human Services (DHHS).

While private employers are not required to follow these guidelines, doing so can help then stay on safe legal ground. Court decisions have supported following these guidelines, and as a result, many employers choose to follow them. These Mandatory Guidelines for Federal Workplace Drug Testing (also called SAMHSA’s guidelines) include having a Medical Review Officer (MRO) evaluate tests. They also identify the 5 substances tested for in Federal drug-testing programs and require the use of drug labs certified by SAMHSA.

The most common method of drug testing, urinalysis, can be done at the workplace (at a health unit, for example), a doctor’s office or any other site selected by the employer. An employee or applicant provides a sample to be tested. Usually, precautions are taken, such as putting blue dye in the toilet and turning off the water supply, to prevent adulteration or substitution of specimens so that collection can be completed in privacy without any direct visual observation by another person.

Under SAMHSA’s guidelines, once a sample is provided, it is sent to a certified laboratory. The accuracy of drug tests done by certified laboratories is very high, but this certification applies only to the 5 substances tested for in Federal drug-testing programs and alcohol.

Below are certain procedures required by SAMHSA’s guidelines to ensure accuracy and validity of the testing process:

Chain of Custody: A chain-of-custody form is used to document the handling and storage of a sample from the time it is collected until the time it is disposed of. It links an individual to his or her sample and is written proof of all that happens to the specimen while at the collection site and the laboratory.

Initial Screen: The first analysis done on a sample is called an initial screen. This one test alone is not always accurate or reliable; there is a possibility of a false positive. Thus, in the event that the initial screen is positive, a second confirmatory test should be done.

Confirmation Test: A second, confirmation test (by gas chromatography/mass spectrometry or GC/MS) is highly accurate and provides specificity to help rule out any false positives (mistakes) from the initial screen. For a test result to be reported as positive, the initial screen and confirmation test results must agree.

Split Sample: a split sample is created when an initial urine sample is split into two. One sample is used for the initial screen and, if positive, the second sample is used for the confirmation test. If there is a positive result, the individual being tested may request the confirmation test be done at a different laboratory. DOT’s alcohol and drug-testing regulations require all tests be performed using a “split sample” collection process.

In the event that the initial screen and confirmation test are both positive, MRO, a licensed medical doctor who has special training in the area of substance abuse, then reviews the results, makes sure the chain-of-custody procedures were followed, and contacts the individual to make sure there are no medical or other reasons for the result. It is only at this point that the MRO may report a positive test result to the employer. Certain medications can sometimes cause a positive result. If this is the case, and a doctor prescribed the medicine and the employee used it in the proper amount, the test is reported as negative.

Who is allowed access to the results of a drug test?
The results of a drug test may be considered personal health information. Consequently, there may be restrictions on how and whether such information (as well as other information related to an employee’s history of alcohol and drug use) can be shared with others. This is why employees who undergo a drug test generally must sign a release (usually at the time of the test) in order for their employer to receive the results. For more information about issues related to the release of health information, contact DHHS. This agency administers the Health Insurance Portability and Accountability Act (HIPAA), which dictates under what circumstances and to whom health information may be released. More information about this issue can be found on the Office of Civil Rights HIPAA web page.

When are drug tests conducted?
There are a variety of circumstances under which an organization may require a drug test. Following are the most common or widespread:

Pre-Employment: Pre-employment testing is conducted to prevent hiring individuals who illegally use drugs. It typically takes place after a conditional offer of employment has been made. Applicants agree to be tested as a condition of employment and are not hired if they fail to produce a negative test. However, it is possible for employees to prepare for a pre-employment test by stopping their drug use several days before they anticipate being tested. Therefore, some employers test probationary employees on an unannounced basis. Some states, however, restrict this process. Furthermore, the Americans with Disabilities Act (ADA) of 1990 prohibits the use of pre-employment testing for alcohol use.

Reasonable Suspicion: Reasonable suspicion testing is similar to, and sometimes referred to, as “probable cause” or “for cause” testing and is conducted when supervisors document observable signs and symptoms that lead then to suspect drug use or a drug-free workplace policy violation. It is extremely important to have clear, consistent definitions of what behavior justifies drug and alcohol testing and any suspicion should be corroborated by another supervisor or manager. Since this type of testing is at the discretion of management, it requires careful, comprehensive supervisor training. In addition, it is advised that employees who are suspected of drug use or policy violation not return to work while awaiting the results of reasonable suspicion testing.

Post-Accident: Since property damage or personal injury may result from accidents, testing following an accident can help determine whether drugs and/or alcohol were a factor. It is important to establish objective criteria that will trigger a post-accident test and how by whom will be determined and documented. Examples of criteria used by employers include: fatalities, injuries that require anyone to be removed from the scene for medical care, damage to vehicles or property above a specified monetary amount; and citation issued by the police. Although the results of a post-accident test determine drug use, a positive result in and of itself can not prove that drug use caused an accident. When post-accident testing is conducted, it is a good idea for employers not to allow employees involved in any accident to return to work prior to or following the testing. Employers also need to have guidelines to specify how soon following an accident testing must occur so results are relevant. Substances remain in a person’s system for various amounts of time, and it is usually recommended that post-accident testing is done within 12 hours. Some employers expand the test trigger to incidents even if an accident or injury was averted and hence use term “post-incident”.

Random: Random testing is performed on an unannounced, unpredictable basis on employees whose identifying information (e.g., social security number or employee number) has been placed in a testing pool from which a scientifically arbitrary selection is made. This selection is usually computer generated to ensure that it is indeed random and that each person was recently tested or not. Because this type of testing has no advance notice, it serves as a deterrent.

Periodic: Periodic testing is usually scheduled in advance and uniformly administered. Some employers use it on an annual basis, especially if physicals are required for the job. Such tests generally are more accepted by employees than unannounced tests, but employees can prepare for them by stopping their drug use several days beforehand.

Return-to-Duty: Return-to-Duty Testing involves a one-time, announced test when an employee who has tested positive has completed the required treatment for substance abuse and is ready to return to the workplace. Some employers also use this type of testing for any employee who has been absent for an extended period of time.

Other: Other types of tests are also used by some employers. For example, follow-up testing or post-rehabilitation testing is conducted periodically after an employee returns to the workplace upon completing rehabilitation for a drug or alcohol problem. It is administered on an unannounced, unpredictable basis for a period of time specified in the drug-free workplace policy. Another type of testing, blanket testing, is similar to random testing in that it is unannounced and not based on individual suspicion; however, everyone at a worksite is tested rather than a randomly selected percentage. Other types of testing include voluntary, probationary, pre-promotion and return-after-illness testing.

What are the different methods of drug testing?
There are a number of different bodily specimens that can be chemically tested to detect evidence of recent drug use. Although some state laws dictate which types can be used, a number of options are technologically feasible. Urine is the most commonly used specimen for illicit drugs, reflecting SAMHSA’s guidelines, and breath is the most common for alcohol, reflecting DOT’s guidelines.

Urine: Results of a urine test show the presence or absence of drug metabolites in a person’s urine. Metabolites are drug residues that remain in the body for some time after the effects of a drug have worn off. It is important to note that a positive urine test does not necessarily mean a person was under the influence of drugs at the time of the test. Rather, it detects and measures the use of a particular drug within the previous few days and has become the defacto evidence of current use. Because alcohol passes rapidly through the system, urine tests must be conducted very quickly after alcohol consumption in order to ensure any degree of accuracy. For this reason, urine tests are generally not helpful in detecting alcohol use as opposed to illicit and prescription drug use, which is more easily traced in urine.

Breath: a breath-alcohol test is the most common test for finding out how much alcohol is currently in the blood. The person being tested blows into a breath-alcohol device, and the results are given as a number, known as the Blood Alcohol Concentration (BAC), which shows the level of alcohol in the blood at the time the test was taken. BAC levels have been correlated with impairment, and the legal limit of 0.08 for driving has been set in all states. Under DOT regulations, a BAC of 0.02 is high enough to stop someone from performing a safety-sensitive task for a specific amount of time (usually between 8 and 24 hours) and a BAC reading of 0.04 or higher is considered to be a positive drug test and requires immediate removal from safety-sensitive functions. Under DOT regulations, a person who tests at the 0.04 BAC level may not resume job duties until a specific return-to-duty process has been successfully completed.

Other alternative specimens that can be used for detecting the use of selected drugs of abuse include blood, hair, oral fluids and sweat.

Blood: A blood test measures the actual amount of alcohol or other drugs in the blood at the time of the test. Blood samples provide an accurate measure of the physiologically active drug present at the time the sample is drawn. Although blood samples are a better indicator of recent consumption than urine samples, there is a lack of published data correlating blood levels for drugs and impairment with the same degree of certainty that has been established for alcohol. In cases of serious injury or death as the result of an accident, the only way to determine legal intoxication is through a blood specimen. There is also a very short detection period, as most drugs are quickly cleared from the blood and deposited into the urine.

Hair: Analysis of hair provides a much longer “testing window”, giving a more complete drug-use history going back as far as 90 days. Like urine testing, hair testing does not provide evidence of current impairment, but rather only past use of a specific drug. Hair testing cannot be used to detect for alcohol use. Hair testing is the least invasive form of drug testing, therefore privacy issues are decreased.

Oral Fluids: Saliva, or oral fluids, collected from the mouth also can be used to detect traces of drugs and alcohol. Oral fluids are easy to collect (a swab of the inner cheek is the most common collection method), harder to adulterate or substitute, and may be better at detecting specific substances, including marijuana, cocaine and amphetamines/methamphetamines. Because drugs do not remain in oral fluids as long as they do in urine, this method show promise in determining current use and impairment.

Sweat: Another type of drug test consists of a skin patch that measures drugs in sweat. The patch, which looks like a large adhesive bandage, is applied to the skin and worn for some length of time. A gas-permeable membrane on the patch protects the tested area from dirt and other contaminants. Although relatively easy to administer, this method has not been widely used in workplaces and is more often used to maintain compliance with probation and parole.

However, most private employers are not limited in the number of substances they can test for and may include drugs that individuals legitimately and/or therapeutically take based on a physician’s prescription. Although most private employers can test for any combination of drugs, there are commonly selected “panels”.

How long are drugs in one’s system?
Drugs have certain “detection windows” – the amount of time after ingestion during which evidence of their use can be detected by a drug test. Though it might not be wise to publicize detection windows and invite employees who may use drugs to push their limits, when implementing drug testing, it is important to understand them. For instance, alcohol is absorbed and eliminated more quickly than other drugs. This is why post-accident testing procedures often require testing for alcohol to occur within 2 hours. Other drugs are eliminated from the system at different rates and thus detectable for different periods of time, often long after the drug’s effect has worn off. The following are estimates of the length of time that certain drugs are detectable:

How does a drug test determine if a person has been using substances? What are cut-off levels and what do they determine?
Aside from a breath alcohol test, drug testing does not determine impairment or current drug use. Rather, drug testing determines a specified amount or presence of a drug or its metabolite in urine, blood, or an alternative specimen. There is a minimum measurement applied to drug testing so that only traces of a drug or its metabolite above a specified level is reported as positive. This measurement is known as a “cut-off level”, and it varies for each drug. Setting cut-off levels involve understanding the expected results of testing and determining the needs of the employer’s drug-free workplace program. For instance, if a cut-off level is set low, test results will come back with more “false positives” as some “passive” users could test positive. (For example, a low cut-off level could cause a positive result from consuming poppy seeds.) Conversely, a high cut-off level will result in more “false negatives”, and thus some users may go undetected. However, a high cut-off level lessens the likelihood of taking action against someone based on “passive” exposure, and for this reason, SAMHSA’s guidelines set cut-off levels on the high side.

Who pays for a drug test? Does an employee have to be paid for time spent having a drug test?
According to SAMHSA, an employer normally pays for a drug test. Also, time spent having a required drug test is generally considered hours worked (a thus compensable time) under the Fair Labor Standards Act (FLSA), a U.S. Department of Labor (DOL) regulation, for employees who are covered by the Act. These types of issues are overseen by DOL’s Wage and Hour Division. For further guidance, please contact the closest DOL Wage and Hour District Office.

Is drug testing legal?
In most cases, it is legal for employers to test employees for drugs. No Federal laws prohibit the practice. However, there are several states that restrict or question an employer’s ability to randomly drug test employees who are not in safety-sensitive positions. Thus, it is very important that employers familiarize themselves with the various state laws that may apply to their organization before implementing a drug-testing program. Furthermore, under certain circumstances, someone with a history of alcoholism or drug addiction may be considered a qualified individual with a disability under the American’s with Disabilities Act (ADA) and other Federal non-discrimination statues. As a result, testing for alcohol without individualized suspicions (e.g. pre-employment or random) is not allowable.

How does one start a drug-testing program?
Drug testing is only one component of a comprehensive drug-free workplace program, which also includes a written policy that clearly outlines employer expectations regarding drug use; training for supervisors on the signs and symptoms of drug use and their role in enforcing the policy; education for employees about the dangers of drug use; and an Employee Assistance Program (EAP) to provide counseling and referral to employees struggling with drug problems. DOL’s online Drug-Free Workplace Advisor helps employers develop customized drug-free workplace policies (that may or may not including drug testing) by reviewing the different components of a comprehensive policy and then generating a written policy statement based on the user’s responses to pre-set questions and statements. (An organization’s name and logo can be incorporated and further modifications to the statement made if desired.) If an organization already has a drug-free workplace policy in place, this tool can be used to ensure it addresses all necessary issues. Because it is important to understand and incorporate the various state and Federal regulations that may apply, it is also recommended the legal consultation be sought before commencing a drug testing program.

A comprehensive drug-free workplace program contributes to a workplace free of the health, safety and productivity hazards caused by employees’ abuse of alcohol or drugs. By educating employees about the dangers of alcohol and drug abuse and encouraging individuals with related problems to seek help, employers can protect their businesses from such dangers, retain valuable employees and help play a part in making communities safer and healthier.